Court of Criminal Appeal dismisses DPP appeal against suspended sentence for drug possession due to exceptional rehabilitation circumstances.

THE COURT OF CRIMINAL APPEAL

Murray C.J. 182 CJA/04

O’Sullivan J.

O’Leary J.

IN THE MATTER OF THE CRIMINAL JUSTICE ACT, 1993,

SECTION 2

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

-v-

INGRAM MCGINTY

respondent

Judgment of the Court delivered the 3rd day of April, 2006 by Murray C.J.

In this matter the accused was convicted of one offence, to which he had pleaded guilty, of unlawful possession of

controlled drugs with an aggregate market value of €13,000.00 or more for the purpose of sale or supply in contravention of

the Misuse of Drugs Regulations, 1988 and 1993 and contrary to s. 15A of the Misuse of Drugs Act, 1977 as amended. The

offence related to a quantity of cannabis resin and cocaine which the accused was found to have in his possession on 23rd

April, 2003. On 29th July, 2004 he was sentenced to five years imprisonment suspended on entering into a bond to keep the

peace and be of good behaviour for a period of five years and to complete the rehabilitation course which he was then

pursuing.

The D.P.P. has appealed the sentence in this case on the grounds of its undue leniency.

As will be explained below it is agreed that this is not a case for a ‘mandatory’ sentence.

Section 27 of the Misuse of Drugs Act, 1977, as amended by s. 5 of the Criminal Justice Act, 1999 provides for the

sentencing of persons convicted of an offence under s. 15A in the following manner:

"(3A) Every person guilty of an offence under s. 15A shall be liable, on conviction on indictment –

(a) to imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of

this section, determine, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

(3B) Where a person (other than a child or young person) is convicted of an offence under s. 15A, the court

shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a

period of not less than 10 years imprisonment.

(3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and

specific circumstances relating to the offence, or the person convicted of the offence, which would make a

sentence of not less than 10 years imprisonment unjust in all the circumstances and for this purpose the court

may have regard to any matters it considers appropriate, including—

(a) whether that person pleaded guilty to the offence and, if so,

(i) the stage at which he indicated the intention to plead guilty, and

(ii) the circumstances in which the indication was given,

and

(b) whether that person materially assisted in the investigation of the offence.”

The appeal by the D.P.P. arises in the context of the provisions of s. 15A of the Act of 1997, as amended, and in particular

subsections (3A), (3B) and (3C) of s. 27 of that Act.

Subsection (3B) provides that the court shall specify as the minimum period of imprisonment for a person convicted of an

offence under s. 15A a period of not less than 10 years.

This section has sometimes been misleadingly referred to in public debate as if the Oireachtas intended that in all cases of a

conviction under s. 15A a minimum of 10 years imprisonment should be imposed.

As the D.P.P., through his counsel, has properly acknowledged this is far from the case.

In subsection (3C) it is expressly provided that subsection (3B) “shall not apply where the court is satisfied that there are

exceptional and specific circumstances relating to the offence, which would make a sentence of not less than 10 years

imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matters it considers

appropriate …”

Among the matters expressly provided for, to which the court may have regard, but it is not confined exclusively to those

matters, is whether the accused pleaded guilty and if so at what stage and whether he personally and materially assisted the

Gardaí in their investigation.

It is not in issue that at the time of sentencing both of those elements were present in this case as indeed were the other

elements referred to by the trial judge in the course of sentencing the accused.

It is accepted by the D.P.P., and again properly so, that the learned trial judge acted correctly in deciding pursuant to s. 27

(3C) that this was not a case in which the provision for a minimum term of 10 years imprisonment in subsection (3B)

applied. In other words the D.P.P. accepted that there are, in this case, exceptional and specific circumstances relating to the

offence which would have made a sentence of not less than 10 years unjust in all the circumstances.

The court concurs with that view and accordingly, it is not in issue in this appeal the subsection (3B), does not apply to this

case.

But of course what the D.P.P. does argue in this appeal is that the imposition of a suspended sentence rather than a

custodial sentence was unduly lenient. It was submitted that the sentence imposed did not reflect the seriousness of the

offence, having regard to its nature, and the quantity and value of the drugs involved. It was submitted that the sentence

imposed was significantly below the range of sentences that are usually imposed for this type of offence. It was also

submitted that sentence failed to have any or sufficient regard to, or relationship with, the minimum penalty as envisaged by

the legislation and that the sentencing judge gave insufficient weight to the intentions of the legislature.

There is no doubt that the possession of illegal drugs for the purpose of sale or supply, particularly in any significant

quantity, is a very serious offence which of itself would normally warrant a custodial sentence. Insofar as the submission of

the D.P.P. contends that a judge sentencing a person for such an offence should also have regard to the gravity attached to

this by the Oireachtas in providing for a maximum sentence of life imprisonment and a minimum of 10 years imprisonment

the Court agrees. Both the inherently serious nature of the offence and the seriousness with which the offence has been

viewed by the Oireachtas as expressed in the relevant statutory provisions, are matters for a trial judge to take into account

when deciding on sentence. Thus even in cases where a trial judge properly concludes that subsection (3B) as regards the

minimum term of imprisonment does not apply to the particular case before him or her, the appropriate sentence should

normally involve a term of imprisonment, including, depending on the circumstances, a very substantial term of

imprisonment.

However, insofar as the submission of the D.P.P. contended that a suspended sentence must always, and in every

circumstance, be considered wrong in principle, the Court does not accept that this is a correct principle to be applied. First

of all there is nothing in the legislation to suggest that the Oireachtas intended to compromise to that extent the judicial

function to impose the appropriate sentence in the circumstances of the case. On the contrary, the Oireachtas expressly

provided for a trial judge to exercise his or her judicial discretion according to the justice and circumstances of the case

when it provided for the non-application of subsection (3B) in certain circumstances. Generally speaking legislation is

incapable of dealing specifically with the vast range of circumstances and factual elements that differentiate one case from

another even though they involve an offence under the same section and this the Oireachtas has recognised in the provisions

just referred to. It cannot be said that there could never be circumstances in which, having regard to the interests of society

as a whole, the facts of the particular case and the circumstances of the accused, where a suspended sentence would be

appropriate. Undoubtedly a trial judge sentencing a convicted person for an offence such as that in question here is

constrained by the considerations already referred to above to consider that a term of imprisonment is normally what should

be imposed. However, where there are special reasons of a substantial nature and wholly exceptional circumstances, it may

be that the imposition of a suspended sentence is correct and appropriate in the interest of justice. This is a combination of

factors which could only arise in a relatively rare number of cases. This Court has previously upheld a sentence of such a

nature in the case of D.P.P. –v- Alexiou [2003] 3 I.R. because there were such exceptional circumstances and special

reasons.

The question which arises in this appeal is whether the trial judge erred in principle in the sentence which he imposed in this

particular case or whether there were such special reasons of a substantial nature and particularly exceptional circumstances

which made the sentence imposed appropriate or at least one which was not unduly lenient.

The factual background of this case

It is clear that the learned trial judge had regard to and took into account on the one hand the seriousness of the offence and

the public interest and on the other hand the general background and history of the accused when determining sentence. In

this regard he relied, first of all upon and accepted a report from the Principal of the Community College attended by the

respondent in his teenage years. This disclosed that his family came from the west of Ireland and, when the respondent was

quite young, emigrated to the United Kingdom. Having accumulated the necessary finance there they returned to Dublin to

open a restaurant which in the event proved unsuccessful. Debts were high and this resulted in serious tensions within the

family. The parents separated with the father returning to the UK. The family were left to fend for themselves and were

initially taken into care until eventually provided with a house.

The College Principal noted that the respondent was among the brighter students scoring 96 % in his mathematics test. He

said he was rated among the highest percentile of the population. Having initially performed well at school the family

situation had a traumatic effect on his progress. Had he had a more supportive environment and with the help of a strong

family he was of the view that the respondent could have successfully gone on to third level education. He also stated that

the respondent had a potential that he now realises he should exploit in a more positive way. His brother and sister have had

successful careers in other sectors. Although he roundly condemned the kind of offence which the respondent had

committed he expressed a hope that he could be dealt with in a way that did not involve a prison sentence. The trial judge

clearly attached weight to these views coming from a person of standing in the community with serious responsibilities for

young people.

The respondent had in fact left school following his Junior Certificate and was subsequently trained as a carpenter and had

some significant success in this field. It was not disputed that, on his own admission he developed a dependency on cocaine

while he was on good earnings from his business as a carpenter. When some of his contract work slowed down he got into

debt with the suppliers of the drug which led to him working for them. On the evidence the learned trial judge found that his

involvement in the offence arose from his drug addiction and the pressure to pay off his drug debts rather than the amassing

of personal wealth from that activity as a business.

The respondent was born in 1974 and was 29 years of age at the date of the offence. He had some relatively minor previous

convictions which it was not contended were of any significance for the purpose of sentencing on this offence. At the time

of his arrest he was interviewed at length by the investigating Gardaí and cooperated fully concerning the location and extent

of the drugs in his possession which were the subject of the charge. He also claimed that at the time he was trying to break

his cocaine dependency, clear off his debts and escape from the situation that his drug addiction had brought him into. This

does not seem to have been seriously disputed by the Gardaí but what the learned trial judge attached particular importance

to was not simply the decision of the respondent, about one month after his arrest and charge, to participate in a programme

at Coolmine House with a view to ending his addiction but extent of his success in that programme.

Evidence was given by a staff member of Coolmine House concerning how the respondent presented himself for treatment

at the Coolmine Centre and the assessment carried out as to whether he could be considered suitable for their day

programme. At the time of presentation he was in the throws of symptoms of withdrawal from cocaine addiction. According

to the witness from the Centre the respondent was initially assessed as a person that needed rehabilitation “… that he had

got a lot of honest values, morals, beliefs and principles in life before he became dependent on drugs. A lot of his

programme was based around reinforcing these old values … and learning the value of honesty and change – changing

his behaviour, or his criminal behaviour and addiction related behaviour”. At the time of the trial he had been some 14

months continuously on the programme. The evidence was that during that time he had been subjected to some 75 tests for

the presence of drugs in his system. None had disclosed such presence and there was nothing in his behaviour to indicate

any form of relapse. He was so successful in the programme that he became a programme leader and was entrusted with a

lot of different tasks from a day to day and week to week basis. According to the witness this meant that he was considered

to be a person that demonstrated and practiced honesty, consistency and responsibility in all areas of the recovery for other

clients of the Centre. He was a role model for them to look up to. He also would have been entrusted to look after certain

groups in evening time activities and some workshops of an educational nature. He helped others in their efforts to get off

drugs. By the time of sentencing he was in an aftercare programme which had commenced in the previous February. The

witness from Coolmine stated that the change between the respondent at the beginning of the course and what he had

become in the meantime was immense. Throughout the period he attended at the Centre voluntarily and daily.

In addition to then attending the Coolmine programme for his drug addiction the respondent requested to take part in a

programme run by the Centre on parenting difficulties. This is relevant to the fact that the respondent has a young son, in

his early teens, by a partner from whom he was estranged during the period of his addiction. He is now reconciled with his

son. It was for this reason he took part in the parent to parent course in Coolmine to help his parental skills with his teenage

son. This course lasted six weeks. Consequent upon his progress in the drug rehabilitation and the parent to parent course he

developed a very full relationship with that son, a teenager.

In providing a written report to the Court Coolmine has pointed out that it was their policy to have complete cooperation

with the courts and the probation welfare services. It stated that throughout the phase one of the programme the respondent

“challenged and modified his addiction related behaviours and criminal behaviours. He struggled to adapt to a new way

of living but after time and adjustment he became a leading member, an advocate, of the programme. This change came

after a large amount of group therapy and one to one counselling that the respondent applied to his lifestyle in all areas”.

In July 2004, the time of his sentencing, it stated that at present he was a self-employed carpenter and continued to attend

his group therapy once a week and one to one counselling as per the aftercare requirements. He was stated to be consistent

in all areas of his recovery and adheres to all programmes rules and policies.

There was also evidence that his improved relationship with his son had had positive consequences. Reports on his son from

his school for the period September 2002 to 2003 was rather negative. He received the lowest or second lowest scoring in

many aspects of his subjects, was easily distracted, tended to distract of others and needed plenty of help at home. His

report for the following year noted that he had progressed very well having matured behaviourally and academically. He was

working well in class and his overall attitude to work and school was much better. His marks generally were much better

being mostly in the A, B and C range. This was put forward as being due to improved relationship and support from his

father.

The learned trial judge also had evidence, by way of letters, from firms, former or prospective employers of the respondent,

which he accepted and which was to the effect that he had done excellent work as a carpenter for at least one of them in the

past and that his prospects of further work from those firms was excellent.

The sentence

Detailed reference has been made to the evidence concerning the respondent’s participation in the drug rehabilitation

programme and his progress in relation to it because the trial judge placed primary reliance on this in deciding the sentence

he would impose. He adverted to the serious nature of the offence and the gravity with which it had been viewed by the

Oireachtas and that such cases generally warrant a custodial sentence. In attaching special importance to the degree of

rehabilitation which had already been achieved by the respondent he stated at one point:

“In all my years in drugs work as a barrister, senior and junior, and in the last nearly 8 years as a judge I

haven’t seen as comprehensive a testing over a long period. This is a man who has done consistently, on the

data supplied, which is in law independent corroboration, drug free”.

When sentencing the accused he concluded that the respondent had:

“… cleared himself of a very savage addiction. A good father to a growing up son. He has improved his life

and he is still trying and, Mr. Ryan supports that, at a high level of insight, motivation and effort to change

his way of life, and I am satisfied he is well on the road to that.”

There was ample evidence before the learned trial judge to support those conclusions. At another point he stated that the

respondent was “a man who is different in degree and in kind” on account of the drug-free progress he had made over a

period in excess of a year.

It is clear that the trial judge was conscious of the fact that if one had regard only to the seriousness of the offence in itself a

custodial sentence was merited. As this Court has frequently stated a judge imposing sentence must not only have regard to

the seriousness of the offence but also the particular circumstances of the offender and, in that light, impose a sentence

which best serves the public interest and the interest of justice.

While a custodial sentence would serve certain objectives such as deterrence and punishment it is clear that he nonetheless

had to consider whether it was in the interest of society that the proven substantial progress in rehabilitation and strong

prospects of full rehabilitation through participation in the Coolmine programme would be put at risk by removing the

respondent from that programme and putting him into a prison environment for a significant period. There was no evidence

whatsoever offered by the State as to the existence let alone efficacy of an in-prison drug rehabilitation programme as

compared with the one that the respondent was actually undergoing in Coolmine. This was the respondent’s first conviction

for a drug offence, serious as it was. There was strong independent evidence of the important level of rehabilitation already

achieved by the respondent and the strong likelihood of complete rehabilitation so that he could lead a law abiding life as a

citizen and continue to support his young son.

This is not to say that that a non-custodial sentence would be justified only because a person charged with a serious drug

offence voluntarily enters upon a drug rehabilitation programme and progresses well in it. As the learned trial judge pointed

out there were a range of exceptional factors at play in this case which included the aptness of the respondent for such a

programme, as assessed initially, the level of success in an intense and difficult programme to which the respondent himself

contributed by becoming a leader and role model in the programme and a promoter for other persons seeking to rehabilitate

themselves and his exceptional period of proven abstention from drugs. This was in addition to the other mitigating factors

already referred to.

The dilemma faced by the trial judge was that the offence in question was undoubtedly grave enough to normally warrant a

custodial sentence, as argued in this appeal by the D.P.P., while on the other hand any meaningful custodial sentence, by

removing him from the rehabilitation programme in which he was at an advanced aftercare stage, ran the real risk of

seriously damaging his prospects of rehabilitation. This was in the context that the trial judge had concluded, as he was

entitled to do on the evidence before him, that there was a high probability that if he continued with the advanced stages of

that programme his rehabilitation would be complete and successful. Complete rehabilitation of drug addicts is notoriously

difficult while at the same time an important part of penal policy since if successful it reduces dramatically the risk of

repeating offences and imprisonment of addicts.

In carrying out this difficult balance as to where the public interest best lay the trial judge clearly decided that its interests

were best served by permitting the respondent to see through his rehabilitation to a probably successful conclusion. Such

rehabilitation was more likely to ensure that the respondent would be a law abiding citizen in the future than if his

rehabilitation programme was terminated by a prison sentence.

The totality of factors which the judge took into account could reasonably be considered as wholly exceptional

circumstances and special reasons of a substantial nature which indicated that the accused was exceptionally “different in

degree and kind” from other cases and which led him to make the decision on sentencing which he did.

Should the respondent commit a criminal offence or otherwise be in breach of his bond to keep the peace and be of good

behaviour he will face the prospect of serving a five year sentence.

In an appeal of this nature it is not for this Court to decide what sentence it would or would have imposed in the

circumstances but whether the trial judge so erred in principle that his sentence should be quashed as being unduly lenient.

The onus is on the D.P.P. to establish that this was the case. This was a finely balanced decision by the learned Circuit

Court Judge and the Court is not satisfied that the D.P.P. has discharged the onus on him in the particular circumstances of

this case.

Accordingly, the appeal is dismissed.